ALJDEC - Licensing

2023A-11969-NPC-ROC · Registrar of Contractors · 2024-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Home Provisions LLC,

COMPLAINANT

v.

Living Space Designs LLC

License No. ROC 340582,

RESPONDENT

No. 2023A-11969-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 10, 2024

APPEARANCES: Patrick Talley appeared via Google Meet on behalf of Complainant Home Provisions LLC. Helen Burch appeared via Google Meet on behalf of Living Space Designs LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-33 and Respondent’s Exhibits 1-12 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

On November 30, 2023, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 10, 2024 at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent Living Space Designs LLC on November 3, 2023. ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds License No. 340582 issued by ROC. Unchu Helenna Burch is Respondent’s qualifying party.

Complainant is Home Provisions LLC.

Complainant performed work on various bathroom and kitchen remodels for Respondent in connection with its license.

On or about October 16, 2023, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $46,863.47, for eight projects.

At hearing, Mr. Talley testified that he was hired by Respondent as essentially a sub-contractor hiring other sub-contractors to perform work for Respondent’s clients. Mr. Talley testified that there were no deadlines on projects, and was working on each project steadily until Respondent locked him out and refused Complainant from either completing the work or tending to punch list items.

Mr. Talley testified that because of this, he adjusted his invoices for work that was completed. Mr. Talley testified that the following was owed on the eight projects:

3112 Dahl $2,228.00

3119 Arbuckle $11,572.97

3139 Hanover $5,750.00

3162 Arbuckle $4,775.00

3163 Hanover $4,000.00

3165 Shaddy $4,800.00

3174 Hill $6,037.50

3186 Gerard $7,700.00

Ms. Burch testified that Complainant came recommended to her, and that commencing in October 2022, the parties had a working agreement whereby they would review the scope of work and Complainant would invoice her for the work completed. However, about five to six months later, Ms. Burch became concerned with the quality of Complainant’s work as she alleged that Complainant would not double check the other sub-contractor’s work.

For example, Ms. Burch testified that tile work was subpar, there was standing water in a shower, backsplash tile was cracked, and a kitchen island was installed crooked causing the cabinets not to close correctly.

Further, Ms. Burch testified that complaints keep coming in about the quality of work performed under Complainant’s supervision, and has had to pay other contractors to finish the same and was concerned about future corrections needed.

Ms. Burch testified and acknowledged that she owed Complainant the following:

3112 Dal $2,228.00

3165 Shaddy $1,330.00

3174 Hill $1,208.32

3186 Gerard $6,250.00

In addition, Ms. Burch testified that she believed she was owed money by Complainant for the amount she had to pay another contractor to repair and/or finish the work done by Complainant.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” Ariz. Rev. Stat. § 32-1154(A)(10).

The preponderance of the evidence shows that Respondent owes Complainant more than $750.00 for services rendered in connection with Respondent’s operations as a contractor. Ms. Burch testified that she owed Complainant $11,016.32 for the work performed on the “Dal”, “Shaddy,” “Hill”, and “Gerard” projects, and did not provide a valid legal defense for her failure to do so.

The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

Respondent’s license should be suspended until it pays to Complainant $11,016.32.

RECOMMENDED ORDER

IT IS RECOMMENDED that Living Space Designs LLC’s license number 340582 be suspended until the Registrar receives proof that it has paid to Home Provisions LLC $11,016.32.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, January 25, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Living Space Designs LLC

[email redacted]

Home Provisions LLC

[email redacted]

By: OAH Staff